Monday, May 24, 2010

Tories: contempt of Parliament redux?

Probably not.

The government's decision to prevent ministerial aides from testifying before Parliamentary committees has invited comparison with its refusal to provide documents on Afghan detainees to Parliament just a few weeks ago. As everyone knows, that nearly provoked a constitutional crisis, which was adroitly nipped in the bud by Speaker Peter Milliken's historic ruling on April 22.

Since then, two cases of ministerial interference with public access to information have surfaced. Senior aide to former Public Works Minister Christian Paradis, Sebastien Togneri, ordered the "unrelease" of a document about government real estate holdings. And Ryan Sparrow, a seasoned political operative now on the staff of HRSD Minister Diane Finley, blocked information on the considerable cost of some government TV advertisements.

The government, as reported yesterday, has decided that henceforward ministerial staff will not appear before Parliamentary committees. Needless to say, this affront has received its due reaction.

Kady O'Malley writes:

There are, of course, some annoying parliamentary traditionalists out there -- including the one behind this keyboard -- who will point out that, although this latest tactic may get full marks for procedural chutzpah, it is, alas, completely unenforceable, since Parliament has the power to send for persons, papers and records. We just went through all that with those soon-to-be-delivered detainee-related documents, so really, there's no excuse for this apparent outburst of cabinet-wide amnesia forgetfulness.

You'll find this sentiment echoed elsewhere, including the progressive side of the blogosphere. Unfortunately, people should go back and read the Speaker's ruling a second time.

What people remember most about it is the part that focuses upon the detainee documents. But there was also a matter of witnesses called to appear before Parliamentary committees. It had been alleged that the government had engaged in witness intimidation:

A second matter before the Chair is the contention – made primarily by the Member for Scarborough—Rouge River – that witnesses were intimidated by answers given in Question Period by the Minister of National Defence and that a letter written by an official from the Department of Justice was contemptuous of the House in setting out for potential witnesses a false basis for refusing to answer questions in a committee of this House.

In the event, the Speaker found insufficient evidence that such intimidation had occurred, although he did express concern:

It does concern me that the letter of the Assistant Deputy Minister could be interpreted as having a ―chilling effect on public servants who are called to appear before parliamentary committees, as contended the Members for Scarborough—Rouge River and Toronto Centre. This could be especially so if the view put forth in the letter formed the basis of a direction given by department heads to their employees who have been called to testify before parliamentary committees.

But Milliken did not stop there, alas:

At the same time, it is critically important to remember in this regard that our practice already recognizes that public servants appearing as witnesses are placed in the peculiar position of having two duties. As House of Commons Procedure and Practice, Second Edition, states at pages 1068 and 1069:

―Particular attention is paid to the questioning of public servants. The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their Ministers. …In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which….may be perceived as a conflict with the witness’ responsibility to the Minister….

The solution for committees facing such situations is to seek answers from those who are ultimately accountable, namely, the Ministers themselves. [emphases added]

In effect, the Speaker has set out the government's current case. And you can be very sure that Harper will not be hesitant to trot out this unequivocal language when the new rules are tabled tomorrow.

It's another stonewall, because Ministers, unlike their aides, cannot be subpoenaed by Parliamentary committees. The new government edict is odious and immoral. But it may well be entirely legal.